The article outlines the urgent need for our courts to depart from an archaic disposition towards racism, which requires plaintiffs alleging discrimination to prove the intent to discriminate – not just that discrimination actually occurred. This standard of jurisprudence ignores the fact that racial bias in modern society is often not overt.

“Requiring proof of discriminatory intent essentially closes the courthouse doors to victims of racial bias,” writes Eva. “If there has ever been a law worth the struggle to change in modern society, this is it.” The article provides a wide-ranging overview of what led to the “Intent Standard” set by Washington v. Davis, and what we can do to overturn that decision and restore our constitutional safeguards against discrimination.

In many ways, the article is a manifesto of our work at the Equal Justice Society. Fabián Rentería, Abby Bar-Lev, Jihan Spearman and I all worked with Eva on the article.

The publication of this article fittingly coincides with the beginning of my time at EJS and the beginning of the next phase of our litigation and advocacy strategy. Before starting at EJS, I had the opportunity to visit Montgomery, Ala., for a meeting with death penalty litigators and activists.

Being in Montgomery was an eye-opening experience. We learned about prosecutors and judges (and even defense counsel) who did not want to address issues of race, or people who were never afforded the opportunity to serve on juries in their hometowns because of their race.

We talked about the disproportionate impact of the criminal justice system on people of color, both in terms of facing the death penalty and in charging and sentencing for crimes. We also explored downtown Montgomery and saw where slaves were led down Commerce Street (though there are no markers to commemorate this, or to show the auction block where they were taken).

On the way home from the trip, I was able to reflect on my time in Alabama, which had reinforced for me the fact that racism is alive and well, in both explicit and implicit forms.

But while it was discouraging to realize there is so much to be done to raise society’s consciousness about racism, it was also inspiring to stand in the spot where Rosa Parks stood as she boarded the bus, or to see the church where Dr. Martin Luther King, Jr., preached and where the Montgomery bus boycott was planned, and to know that the work EJS and our allies do to fight racism in all forms is crucial, and to keep hope alive that things will change.

Download a PDF of the issue.

Allison Elgart joined the Equal Justice Society as Supervising Attorney on October 4, 2011. She was formerly an associate in the San Francisco office of Lieff Cabraser Heimann & Bernstein, LLP, and previously clerked for the Hon. Robert P. Patterson, Jr., United States District Court, Southern District of New York. Allison is a 2005 graduate of Harvard Law School, where she was the Editor-in-Chief of the Harvard Civil Rights-Civil Liberties Law Review and worked as a student attorney at the Harvard Legal Aid Bureau.

The Court has instead become increasingly damaged, especially with landmark decisions such as in Dukes v. Wal-Mart, which told women that Wal-Mart is above the law. We only have to look back to Bush v. Gore, Citizens United, and numerous other cases to see that our highest court in the land does not mete out “Equal Justice Under Law.”

If the Equal Justice Society and its allies are to accomplish our mission of reclaiming the 14th Amendment and its protections against discrimination, we must be able to argue our cases before impartial justices who do not reflexively rule against the interests of average Americans.

Let’s connect the dots:

“Wal-Mart Gets a Free Pass For Bias From the Supreme Court” — “The Supreme Court issued its decision in the Dukes v. Wal-Mart sex discrimination case [Monday], a frustrating ruling that doesn’t challenge the existence of bias, but that exempts the company from accountability” wrote Rinku Sen on Colorlines.com. “The case highlights the difficulty of addressing discrimination at a time when intentional bias is both illegal and socially unacceptable, and yet obvious gender and racial gaps remain.”

Our friends at the Impact Fund and Equal Rights Advocates are continuing the fight. But like the Citizens United decision, the Dukes decision demonstrates that the Supreme Court will favor corporations over people and business interests over civil rights.

Eva Paterson ties together the problems with the courts. — EJS President Eva Paterson joined Nan Aron (Alliance for Justice), U.S. Senator Sheldon Whitehouse, Dahlia Lithwick (Slate) and Carl Pope (Sierra Club) on a panel organized by Alliance for Justice at last week’s Netroots Nation to address the growing influence of corporations within the American judicial system, particularly in the Supreme Court. Watch the video.

And on top of the high court’s pattern of decisions, we see growing concern over ethics.

“Clarence Thomas participated in a secret political fundraising event put on by the Koch brothers to fund Tea Party infrastructure groups.” — A June 19 exposé in The New York Times detailed Justice Clarence Thomas’s ties to a conservative donor, his lack of disclosure in receiving gifts, and donations given to the Justice’s wife to fund a Tea Party-related group. From the NYT article: “The code of conduct is quite clear that judges are not supposed to be soliciting money for their pet projects or charities, period,” said Arn Pearson, a lawyer with Common Cause. “If any other federal judge was doing it, he could face disciplinary action.”

In April, Bob Egelko of the San Francisco Chronicle reported that Justice Antonin Scalia’s son was a partner in the firm representing Wal-Mart. Egelko describes the convoluted way in which Justice Scalia was able to escape an obligation to recuse himself from the case, but it demonstrates the need for more attention to the matter of judicial ethics.

It’s time that we work together to restore the Supreme Court to a level playing field with impartial referees so that our efforts to reclaim the 14th Amendment and the Constitutional protections against discrimination can someday be fairly heard.

Protecting the 14th Amendment
By Eva Paterson
Huffington Post

For almost 150 years, the 14th Amendment has been the backbone of civil rights law in America. Its protection of individual rights for all — from freed slaves to immigrants to workers fighting against race discrimination — has made this amendment an honorary member of the Bill of Rights.

No wonder it is under attack.

In recent months, Republican Senators and state legislators have sought the public spotlight by calling for an end to the amendment’s guarantee of citizenship to those born on U.S. soil. If a child’s parents are not documented, they shout, that child should not be allowed to be a citizen. If they had their way, they would roll back a U.S. Supreme Court decision, U.S. v. Wong Kim Ark, decided more than a century ago.

If this is what the enemies of the 14th Amendment are doing in the spotlight, imagine what they are doing behind the scenes to eviscerate the measure. Those who want to turn the clock back on civil rights also are trying to undo the Amendment’s Equal Protection clause, making it virtually impossible for victims of discrimination to find justice in our courts. Read more.

In August, Judge Vaughn Walker, of the U.S. District Court in San Francisco, ruled that Proposition 8 ‘s ban on same-sex marriage violated the Fourteenth Amendment’s Equal Protection Clause as not rationally related to any legitimate governmental interest.

Supporters of Proposition 8 appealed the decision to the Ninth Circuit, which is set to hear arguments regarding the measure’s constitutionality on December 6. The State of California decided against appealing.

The amicus brief argues that Proposition 8 excludes an entire class of people – gay men and lesbians – from the long-standing institution of marriage, pushing them instead to the inherently unequal category of domestic partnership.

As the Supreme Court announced in Brown v. Board of Education, “separate but equal is inherently unequal.” Because gay men and lesbians are denied the opportunity to marry, they suffer extreme societal harm. Indeed, their families are stigmatized, deprived of benefits married couples enjoy and are vulnerable to increased discrimination.

“The Equal Justice Society lauds Judge Vaughn’s thoughtful and carefully reasoned opinion,” said Reggie Shuford, EJS’s Director of Law and Policy. “We sincerely hope that the Ninth Circuit will follow suit.”

Download the brief (PDF)

Conferences such as today’s are important. I just returned last night from the Airlie Civil Rights Conference in Virginia sponsored every year by the NAACP Legal Defense and Educational Fund. My body doesn’t know where it is or what time it is, but the trip was well worth it, and I highly recommend attending it. These conferences are important in many ways. First, there is an opportunity to identify and address the current and prospective issues that will require our time and resources. Second, these conferences present the opportunity to strategize collectively about how to move forward on some of the most challenging issues we will confront in our work. At Airlie, Tom Perez, head of the Civil Rights Division at DOJ, talked about the need to use all of the tools in the toolbox in order to advance social justice. Among those tools are using advocacy vehicles beyond litigation; using public education to debunk the myth that we are “post-racial;” and working in coalition with other agencies and organizations. To that list, I would add recognizing the importance of non-lawyers in the fight for justice. A final but very important benefit of these conferences is that are able to see that we are not alone in our fight. We have smart, committed colleagues to battle alongside us. That’s crucial to staying in the fight when it seems that the obstacles to justice are intractable or that we are even losing the battle. The Reverend Martin Luther King, Jr., said that, “The arc of the moral universe is long, but it bends towards justice.” Especially in times like these, it is important to take the long view. These conferences reinforce the notion that we have a long road ahead but that we won’t be fighting these battles alone.

People often express admiration, and occasionally surprise or curiosity, that I have devoted my legal career to working in the public interest rather than pursuing a career where maximizing profit is the primary goal. Implicitly, usually, but sometimes explicitly, they ask: Why? The answer is quite simple: Well, why not? Frankly, I don’t see my career choice as particularly remarkable. Don’t get me wrong: I am privileged every day to do what I do. I have met some of the most amazing people because of the work I do. But becoming a civil rights lawyer was as natural to me as breathing. And as much as I would like to claim my motives are purely altruistic, I have to admit that some part of what I do is based on self-interest. The issues on which I advocate are by and large issues that I have confronted in my own life. My roots in NC – the good and the not-so-good, a strong, solid set of values versus a legacy of slavery – and my experiences as an African-American man more generally greatly account for the work I do today. Being stopped repeatedly by troopers and police officers in my teens and 20s feels an awful lot like the racial profiling I have challenged in court. Having teachers throughout my education order me out of their classrooms for the smallest alleged infraction or express little faith in my abilities and shock when I exceeded their narrow expectations is akin to the tracking and school-to-prison pipeline practices that have been the subject of some of my cases. Lack of opportunity, underemployment, lack of healthcare, and run-ins with the criminal justice system are issues that my family, friends and former neighbors continue to confront in their daily lives. So, it is a privilege to be able to challenge those issues that compromise the ability of the people who mean the most to me to live the most engaged, productive, healthy, happy and meaningful lives possible.

The times they are a-crazy, aren’t they? As if our work wasn’t already challenging enough, the downturn in the economy has taken things to a whole new level of crazy. From the Tea Partiers to the birthers, to the former witch and anti-masturbation crusader who stands poised to being elected to the U.S. Senate, it is stunning to see the issues and the personalities that get traction in the media. And we know it’s not just about the economy. It is also about race. Many folks have not gotten over the fact that their President is a black man. And they are easy manipulated by the Sarah Palins and Glenn Becks of the world — known collectively as lipstick and dipstick – who trade on fear and play to folks’ worst instincts for their own personal gain. When Dr. Laura Schlessinger went on her n-word rant, Sarah Palin was the first to come out in support of her, using another of her ever-present gun metaphors: “Don’t retreat . . . reload!” Enough already. Just after President Obama won the election, former House majority leader Tom DeLay suggested that instead of a formal inauguration, President Obama should “have a nice little chicken dinner, and we’ll save [the country] $125 million.” Not even subtle. If you have not read the recent article by Steven Thrasher in the Village Voice, called “White America Has Lost Its Mind,” I commend it to you. He makes a very compelling case. Some of this stuff is downright loony, when you consider that a CNN poll revealed that almost 25% of Americans believe that Obama is Muslim [as if there’s something wrong with that!], while only 42% accept that he is Christian. Twenty-five percent of Americans also believe that President Obama was “probably or definitely” born in another country and 14% believe in their hearts that he is the anti-Christ. Nearly a quarter of Republicans believe that. Seriously. This stuff would be pretty funny, perhaps in a different time and context (i.e., a Saturday Night Live sketch), it if didn’t have such a profound impact on our ability to move our country forward. This nonsense makes our work infinitely harder.

Dr. King said, “Injustice anywhere is a threat to justice everywhere.” Those words ring as true today as ever before. Second-class citizenship for any of us cheapens the value of all of our citizenship. Whether it be advocacy related to economic justice, racial minorities, immigrants’ rights, women, the LGBT community (as compelling as ever given the recent slate of teen suicides), the war and post-9/11 hysteria, international human rights, education, the criminal justice system or the death penalty, there is no shortage of issues in need of reform. I was at an anti-death penalty conference earlier this year and heard Sister Helen Prejean, of “Dead Man Walking” fame, remark that all work on behalf of justice is interrelated. How true that is. And whether the goal be to transform local, national or international communities, there is enough work to keep all of us busy for a long time to come.

While it is true that we have our work cut out for us, what excites me is people’s native humanity. That can be a bit harder to see in a down economy, but it is mostly there. The outpouring of such tremendous generosity in the aftermath of the devastation in Haiti and New Orleans, and the uproar over the enactment of SB 1070 in Arizona, for example, speak to people’s innate sense of decency and concern for fairness and humankind. Public service – the work we do – is merely a manifestation of that humanity.

Sister Helen said she felt compelled to write the story that would eventually become the book, Dead Man Walking, which would ultimately become a movie for which Susan Sarandon would win the academy award for playing her. Sister Helen said she simply HAD to tell that story.

And that is the second answer to why I do what I do and why I am sure many of you do what you do. I feel compelled to work towards equality and justice on behalf of the underserved. Entire communities are strategically and structurally relegated beyond the grasp of meaningful opportunity. Many are targeted for second-class citizenship or for no citizenship at all. Working in furtherance of a more just society is a privilege; it’s far from a compromise. I have gained so much more out of my career in public service than I have given up. Public interest work impacts people’s lives in fundamental ways. Folks who are otherwise often powerless or disenfranchised are given a voice by the work that we do, even if temporarily.

One of my most memorable cases involved Rossano Gerald, who was a decorated sergeant in the Army when I met him, after he and his 12-year-old son Gregory were the victims of racial profiling. They were driving from Maryland to Oklahoma in August 1998 for a family reunion when they were pulled over by the Oklahoma Highway Patrol for the false reason of having failed to use a signal when switching lanes. Sgt. Gerald and Gregory had their car ransacked, completely torn apart by two troopers and a drug-detecting dog. Of course, nothing was found. Sgt. Gerald is perhaps the most honorable and law-abiding person I know. He is a hero to many, especially Gregory. Many indignities and illegalities transpired during the course of the roughly one-hour-and-a-half detention that hot August day. But two things that Sgt. Gerald told me I will never forget: First, Sgt. Gerald spoke of how humiliating the experience was. He said: I have spent the majority of my adulthood fighting all over the world trying to spread America’s ideals and principles of democracy and humanity. Yet, I return home for a brief period of time and am made to feel like a second-class citizen.
Second, during the search of his vehicle, Sgt. Gerald was separated from Gregory, who was placed in the very hot police car, with the air condition turned off and the drug dog, a German Shepherd, salivating and growling at him from the back seat. At the time, Sgt. Gerald had been handcuffed and placed in another unit. He was unable to turn around and see what was happening to Gregory. He later told me that that experience made him break one of his earliest promises to his son, who he told as a baby that he would always be there to protect him, no matter what. Although it was far from his fault, he felt he had let his son down. Representing SGT Gerald and Gregory has been one of the highlights of my career.

Just like many of you, my experiences growing up absolutely inform the work that I do today. Having grown up literally on the wrong side of the tracks in Creekwood South, a notorious housing project in Wilmington, NC, I know firsthand what it is like to live in a community without much access to meaningful opportunity. The quality of people’s lives is seriously undermined when they don’t have access to quality healthcare, a solid education, a warm home, a hot meal, a job or even a fair shot at competing for jobs. Not only is the quality of people’s lives compromised, those lives are often cut short. For me, the contrast between the haves and the have-nots was brought into sharp relief when I became one of two African-Americans to integrate and the first black person to graduate from Cape Fear Academy, a local private school in Wilmington, in the 1980s. CFA’s students were from the wealthiest families in the city and they lived in the richest neighborhoods. Upon turning 16, they were given the fanciest cars available. I, on the other hand, bought my first, very used car for $800 following my freshman year of college.

As the first person in about three generations of my family to graduate from high school, I experienced firsthand what it means to have access to a quality education. Likewise, I continue to observe the struggles of relatives and friends who have not been so fortunate.

So, I was struck and distressed by a New York Times article several months ago reporting that the South has become the first region in the country where more than half of public school students are poor and more than half are members of minorities. As someone with nieces and nephews who attend schools in the South, in NC, this greatly concerns me. These schools generally have lower achievement, higher dropout rates, and lower test scores. According to the article, Southern schools are far more segregated now than they were at the height of integration in the ’70s and ’80s, a period that saw a narrowing of the achievement gap. Minority schools tend to be larger, have higher student-teacher ratios and have higher poverty rates. Moreover, there is a history of providing the least educational resources to the students who need the most. I am confident that many schools in California follow this same trend. Entire communities suffer, as does our society at large, when our kids are ill-prepared to compete in the global economy.

More than merely depriving students of the resources they need to thrive, many school policies and practices actively push students, particularly those who are African-American and male, out of schools and into the criminal justice system, a phenomenon known as the school-to-prison pipeline. In a recent case, I represented several poor African-American students and families against a large, Southern metropolitan school system for delegating its constitutional responsibility to provide each student an “adequate” education to a private, for-profit corporation to run its alternative school to the tune of $7 million a year. The school operated like a prison rather than an educational facility. The students were subjected to invasive searches every day upon arrival at school, were given no homework, allowed to play cards in class, were not allowed to take books home or, in the case of female students, to bring feminine hygiene products to school. The students were further expected to learn from a computer program in lieu of instruction by qualified instructors. We ultimately settled the case on favorable terms, but I am haunted by the notion that the case was just a drop in the bucket. In Philadelphia, for example, 51% of Latino and 43% of African-American male students fail to finish high school in six years.

And this crisis doesn’t stop at the schoolhouse gates. At every stage of the criminal justice process, African-Americans and Latinos are overrepresented. There is even a name for it: cumulative disadvantage or negative race effects. African-Americans and, in most instances, Latinos are more likely to be stopped (and not just in Arizona). They are more likely to be searched. They are more likely to be arrested. They are more likely to be prosecuted. They are more likely to be indicted. They receive harsher sentences and are more likely to be incarcerated. In her new book, law professor Michelle Alexander calls this mass incarceration The New Jim Crow. More African-American women and men are incarcerated today – or are at least under the control of the criminal justice system – than were enslaved the decade before the Civil War began. We can thank the War on Drugs for that. When the war on drugs was first conjured up, conservatives and the media created the image of the “criminalblackman” – all one word – and our criminal justice system (perhaps our society writ large) has accommodated itself to eliminating him.

There is a correlation, of course, between poverty, lack of opportunity, and crime. As though poverty itself were not bad enough, in my personal and professional life, I have observed certain indignities associated with it. I grew up one of five children raised by a single mother. She supplemented her monthly welfare check with work as a domestic. For many years, I grew up fearful that, as had been threatened time and again, some busybody or someone with a grudge would report us to the Department of Social Services, which would come and take us away from our mother. The Department of Social Services had the power to summarily declare her unfit and us neglected and remove us from our home. I remember vividly that social workers – or “caseworkers” as my mother called them – would make monthly or regular visits to our house and inspect it and us as though we were animals in a zoo. We would have to be spotless and sit quiet and still as if we were mannequins on display in a store. It was a humiliating and demoralizing experience. Unlike most teenagers, my biggest dream was not to get my driver’s license upon turning 16 but rather to reach age 18 and no longer be subject to the whims of the Department of Social Services. And I vowed never to be so powerless and voiceless again. That experience certainly inspired my desire to be an advocate for those without a voice.

For similarly inclined law students, a little advice: It is important to know that there is no one path to doing public interest work. My path was not so direct. I worked for a law firm both summers of law school and for three years after law school, following a judicial clerkship. Not everyone can afford to do public interest work immediately after law school, so if you need to work in a law firm to pay off loans or for whatever reason, go for it. It’d be good, if possible, to do pro bono work while there. Of course, any job in this economy is a good job! And remember that government service is important and honorable work and is a viable public service option.
I also want to emphasize the importance of mentors. On the way to the airport yesterday, returning from Airlie, I shared a ride with Charles Ogletree, a professor at Harvard Law School and co-founder and Chair Emeritus of the Equal Justice Society, who talked about the importance of mentors. As someone who mentored both Barack Obama and Elena Kagan, I think he is on to something.
Developing solid advocacy skills is also key. It’s great to be absolutely committed to the cause, and I understand that much of what you study in law school may bore you to tears. But don’t forget why you went to law school. Study hard. Make it a priority to learn all the skills that will make you the most effective advocate possible.

It should also be stressed that a career in public service need not equate to an ascetic, humorless existence. During her speech at the anti-death penalty conference, Sister Helen said (and I quote): “Working for justice is not a sad-ass thing!” Amen, Sister Helen! Indeed, this work, while often emotionally draining and always challenging, can be very exciting. I can attest that I have gotten to do some really fun stuff over the course of my career.
Sister Helen also said that, if you’re not doing anything to combat injustice, you’re on the side of the status quo. Count me on the side of justice.

Thank you.